February 11, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
SABRINA S. ETTERS, Appellant
Appeal from the Order entered on February 13, 2013 in the Court of Common Pleas of Centre County, Criminal Division, No. CP-14-CR-0000423-2011
BEFORE: DONOHUE, SHOGAN and MUSMANNO, JJ.
Sabrina S. Etters ("Etters") appeals from the Order denying her first Petition for relief pursuant to the Post Conviction Relief Act ("PCRA"). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court set forth the relevant factual history:
[Etters] was employed as a housekeeper for the Village at Penn State ["the Village"] and worked on the same floor as an eighty-four year old resident, who was suffering from dementia. In early October 2010, the man's daughter realized that two checks were issued from his account and cashed at First National Bank. Video surveillance showed [Etters] cashing the checks, using the First National Bank drive-through, at a time matching the time stamp on each check. Ellen Corbin ["Corbin"], an administrator at the Village, was given still photographs from the video surveillance in the event that she observed either the car or the woman shown in the photographs at the facility.  Corbin did observe the vehicle from the photographs at the Village and notified Detective Richard Saupp of the Patton Township Police Department. Detective Saupp went to the Village and had a conversation with [Etters], the registered owner of the vehicle. During the conversation, [Etters] admitted to the thefts and completed a written confession.
PCRA Court Opinion, 2/14/13, at 1-2.
Etters was charged with theft by unlawful taking, receiving stolen property, and forgery. Following a jury trial, Etters was found guilty of theft by unlawful taking and receiving stolen property, and found not guilty of forgery. On August 8, 2011, the trial court sentenced Etters to two years of probation, ordered her to pay restitution to First National Bank, and pay a fine. Etters filed a timely Notice of Appeal; however, she discontinued her appeal on October 21, 2011.
On January 3, 2012, Etters filed a PCRA Petition. The PCRA court appointed counsel, who filed an amended PCRA Petition. Following a hearing, the PCRA court denied the Petition. Etters filed a timely Notice of Appeal.
On appeal, Etters raises the following question for our review: "Did the PCRA court err in concluding that trial counsel was not ineffective in failing to seek the suppression of [Etters's] confession?" Brief for Appellant at 4.
This Court's standard of review regarding a PCRA court's order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.Super. 2011) (citations and quotation marks omitted).
Etters contends that her trial counsel was ineffective for failing to file a motion to suppress the statement she gave to Detective Saupp. Brief for Appellant at 11. Etters argues that the evidence demonstrated that her confession was coerced because Detective Saupp confronted her with evidence of criminal activity, provided her with paper and a pen to write her confession, and she was not free to leave her meeting with Detective Saupp. Id. at 11, 13. Etters also asserts that her counsel failed to file a motion to suppress because she was trying to get Etters placed in the Accelerated Rehabilitative Disposition ("ARD") program and that a potential plea bargain involving an offer of probation would have been rescinded by the Commonwealth. Id. at 11-13. Etters claims that counsel did not have a reasonable basis for failing to file a motion to suppress as Etters was ineligible for ARD, and any potential plea would not have been rescinded by filing the motion. Id. at 12-13.
To succeed on an ineffectiveness claim, Etters must demonstrate by the preponderance of the evidence that
(1) [the] underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010). Counsel is presumed to be effective and the burden is on the appellant to prove otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2010).
Further, with regard to Etters's underlying claim that her statement to Detective Saupp should have been suppressed, our Court has noted the following:
It is a fundamental precept enshrined in the United States Constitution that a suspect subject to a custodial interrogation by police must be warned that he has the right to remain silent, that anything he says may be used against him in court, and that he is entitled to the presence of an attorney. If an individual is not advised of his Miranda rights prior to custodial interrogation by law enforcement officials, evidence obtained through the interrogation cannot be used against him. In order to trigger the safeguards of Miranda, there must be both custody and interrogation. Statements not made in response to custodial interrogation are classified as gratuitous and are not subject to suppression for lack of Miranda warnings.
In deeming an interaction to be a custodial interrogation, the police officer's subjective intent does not govern the determination but rather the reasonable belief of the individual being interrogated. …
An individual is deemed to be in custody for Miranda purposes when he is physically denied ... his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by the interrogation. The court must consider the totality of circumstances, including factors such as the basis for the detention; the duration; the location; whether the suspect was transferred against his will, how far, and why; whether restraints were used; the show, threat or use of force; and the methods of investigation used to confirm or dispel suspicions.
Commonwealth v. Cruz, 71 A.3d 998, 1003-04 (Pa.Super. 2013) (citations, brackets, and quotation marks omitted).
In this case, on December 14, 2010, at approximately 10:00 A.M., Etters stated that Corbin, who was not her supervisor at the Village, asked Etters to meet with Detective Saupp in the Chapel. N.T.. 10/5/12, at 40, 51; N.T., 7/12/11, at 78, 100-01. Detective Saupp, who is about 5'6" and weighed approximately 150-160 pounds, was wearing casual slacks and a shirt, and did not possess or display a gun during the meeting. N.T., 10/5/12, at 19, 42; N.T., 7/12/11, at 102-03. Detective Saupp initially clarified to Etters that she was not under arrest and that she did not have to speak with him. N.T., 7/12/11, at 101, 117. Detective Saupp explained to Etters that he was investigating a theft at the Village. N.T., 7/12/11, at 101. Etters stated that she wanted to talk to Detective Saupp because a theft should not occur at the Village. Id. Etters confirmed that her conversation with Detective Saupp was similar to an interaction with a random person on the street and that she could have declined to talk to him. N.T., 10/5/12, at 44-45; see also N.T., 7/12/11, at 103 (wherein Detective Saupp stated that his demeanor during the meeting was calm). Thereafter, Etters admitted to the thefts and completed a written statement. N.T., 10/5/12, at 39; N.T., 7/12/11, at 105-06. The meeting between Detective Saupp and Etters lasted for approximately 15-20 minutes. N.T., 10/5/12, at 19, 43-44; N.T., 7/12/11, at 78, 104. Detective Saupp did not arrest Etters after the meeting and stated that he waited until after the holidays to file the paperwork with the district judge. Id. at 104.
Viewing the totality of the circumstances, Etters was not in custody at the time she admitted to the theft and Miranda warnings were not required. Further, to the extent Etters claims that her confession was involuntarily given, we conclude that such a claim is without merit based upon circumstances surrounding the confession. See Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998) (stating that to determine whether a defendant, who is not in custody, provided an involuntary confession, courts should review the duration and means of the interrogation; the physical and psychological state of the accused; the conditions attendant to the detention; the attitude of the interrogator; and any and all other factors that could drain a person's ability to withstand suggestion and coercion to determine the voluntariness of a confession). Accordingly, Etters's claim of ineffective assistance of counsel for failing to file a motion to suppress has no arguable merit. See Martin, 5 A.3d at 184 (concluding that there is no arguable merit to appellant's claim that trial counsel was ineffective for failing to seek suppression of his confession on Fifth Amendment grounds); Commonwealth v. Franklin, 990 A.2d 795, 800-01 (Pa.Super. 2010) (concluding that counsel could not be deemed to be ineffective for failing to file a motion to suppress where the underlying suppression claim had no legal basis and was without merit).